Crim pro 5th and 6th amendments Flashcards
1
Q
The 5th Amendment protects..
A
Self-incrimination.
“No person…shall be compelled in any criminal case to be a witness against himself.
2
Q
What is the scope of the 5th Amendment when it is invoked by a witness?
A
Allows witnesses to refuse to testify where a response might incriminate or lead to incriminating evidence, even if the witness is innocent.
3
Q
When does the 5th Amendment trigger?
A
Applies to any investigative stage that calls for testimony that might incriminate in a later criminal proceeding; e.g. grand jury, civil discovery, or administrative proceeding.
4
Q
Under what laws it may be applied?
A
Applies to cases under state or federal law. However, it does not apply to questions the answer to which might incriminate under foreign law
5
Q
Fifth Amendment protection is limited to
A
testimonial evidence.
6
Q
Testimonial evidence is characterized by
A
by the disclosure of the contents of a suspect’s mind and is generated when the suspect gives information. (written or oral)
7
Q
What is not testimonial evidence?
A
Demonstrating the quality of a voice, as in compelled recitation of words spoken by the perpetrator, is not testimonial.
Nor is the compelled giving of blood, tissue, hair, handwriting, etc. samples
8
Q
Is it true that in a criminal case, the prosecutor cannot force the defendant to testify and the defendant has the right to remain silent and invoke the protection of the Fifth Amendment?
A
True
9
Q
Is it true that in a criminal trial, the prosecutor is prohibited from commenting on the defendant’s decision not to testify?
A
True
10
Q
Statements made out of court by a D that invoked his 5th A may be used, if otherwise admissible – usually as a party admission.
A
True
11
Q
What substitutes for the self-incrimination privilege?
A
A grant of immunity
12
Q
What happens if a person is granted immunity?
A
by giving protection against later prosecution stemming from the immunized statements.
13
Q
Is a witness free to decline immunity?
A
A witness is not free to decline immunity.
14
Q
What are the types of immunity? (2)
A
1) Transactional immunity
2) Use plus derivative use immunity (often called “use immunity”)
15
Q
What is Transactional immunity?
A
Bars future prosecution (blanket-all) , except for perjury, of immunized witnesses for any crimes
mentioned in response to questions
16
Q
What is “Use immunity” and Use Derivative immunity?
A
Neither the testimony itself nor any information directly or indirectly derived therefrom may be used against the witness, except in a perjury or false statement prosecution.
17
Q
What if the witness is later prosecuted for the crime about which he testified?
A
1) The court must hold a taint hearing
2) Prosecutors have the heavy burden of showing that they have a “legitimate independent source” for the evidence.
18
Q
Is the exploitation of immunized testimony in other, more indirect ways often allowed?
A
Yes. e.g., planning trial, cross-exam, interpreting evidence
19
Q
Can an immunized testimony be used to impeach a witness who testifies at a later trial?
A
No.
20
Q
Can police produce documents whether seized or found by a warrant or other ways that could incriminate a witness be suppressed if they have invoked 5th amendment rights?
A
No. The only basis for invocation of the privilege is when it is on the ground that the documents were created under any compulsion.
21
Q
If the production of tangible items, including documents, in response to a subpoena, may, however, communicate an
a. acknowledgment of the existence of the document or item
b. acknowledgment of its possession or control
c. authentication
Then Witness can..
A
then the witness may refuse to produce on 5th Amendment grounds unless these are the content of the documents can be predetermined and known in advance.
22
Q
T or F: if the papers are unobtainable by a summons from the client, they are unobtainable from the attorney.
A
True. To protect the attorney-client relationship.
23
Q
DO Collective entities (corporations, unions, etc.) have 5th Amendment protection?
A
NO. Only natural people.
24
Q
What are the THREE CONSTITUTIONAL PROTECTIONS in criminal proceedings?
A
- Due process – Fifth and Fourteenth Amendments
- Fifth Amendment Self-Incrimination Clause (Miranda)
- Sixth Amendment Right to Counsel
25
What does DUE PROCESS protect?
It bars involuntary confessions: coerced
26
Is withholding medical treatment until a suspect provides an explanation for his injuries would constitute coercion?
Yes.
27
Coercion for statements can be done by:
by Improper police tactics such as:
1) threats or physical harm
2) promises
28
When does the protection of Due process apply to confessions?
When there is a state action.
The truth of the confession is irrelevant if due process was violated
29
What confessions were given voluntarily means?
voluntary does not mean of own free will; e.g., the defendant who confesses after
hearing the “voice of God” has not given involuntary confession
30
When Does Miranda apply?
Outside court; i.e., to interrogation when the suspect is in the custody of the police, because such interrogations are inherently compelling of self-incriminating speech and require valid warning.
31
What the four warnings are required under Miranda?
a. right to remain silent
b. anything said may be used against suspect
c. right to the presence of attorney (sometimes called 5th Amendment right to
counsel)
d. right to a free attorney if a suspect cannot afford one
32
if no warnings were given, can the prosecution use the statement in its case-in-chief?
No.
1) even if the suspect actually knew the rights
2) even if the statement was not incriminating when made
33
Must police stop questioning if an attorney is requested?
Yes.
34
Are spontaneous statements made by D acceptable?
Yes.
35
When warnings must be given?
1) applies to all levels of crime, including misdemeanors
2). applies to statements used at the sentencing phase
36
Miranda applies only
to custodial interrogation.
37
Define custody?
Person in custody is person deprived of freedom in a significant way (does not feel free to leave)
38
In home interrogation is generally
not custodial.
39
if the suspect is in the stationhouse voluntarily the interrogation is..
not custodial.
40
Roadside stop; for example, traffic violation or DUI investigation.. Person is
seized for 4th amendment purposes but not in custody for Miranda to be triggered.
41
Most Terry stops are not...
not custodial.
42
What is considered an Interrogation?
It is any express questioning or its functional equivalent: words or actions that police should know are reasonably likely to elicit an incriminating response.
We must consider:
1) police intent is relevant: if the police intend to elicit an incriminating response it is likely to be an interrogation
2) known susceptibility of the suspect is relevant
43
What about Informers or undercover officers planted in jail, is confession elicited need a warning under Miranda?
No. Because there is no compelling
atmosphere; no interplay between interrogation and police custody.
Therefore no Miranda warnings are required.
44
No Miranda warnings are required even though there are custodial interrogations (Exceptions to Miranda):
1) booking questions: administrative questions to secure biographical data necessary to complete a booking or pretrial services.
2) request to take a breathalyzer
3) public safety exception: questions reasonably prompted by concern for
public safety. (e.g., the discovery of a weapon or kidnap victim)
45
After the warnings, the suspect may
waive or invoke Miranda rights
46
What is the Waiver standard:
waiver must be 1) voluntary, 2) knowing, and 3) intelligent
47
waiver is voluntary when
it is product of free and deliberate choice; no intimidation, coercion, deception (as to rights, choices)
48
a waiver is knowing and intelligent when
person is aware of the rights and of consequences of abandoning them
49
How can a suspect invoke his Miranda rights?
1) Right to silence: express invocation or refusal to talk
2) Right to counsel: by an unambiguous request.
The right to counsel bars not only further questioning on the subject of the interrogation but also on any other crime, even by a different interrogator with new warnings (except after a 14-day break in custody)
50
Do Police have an obligation to stop questioning or clarify a suspect’s wishes after an ambiguous request for counsel (e.g., “Maybe I need a lawyer.”)?
No.
51
Once rights are invoked. What are permissible police responses:
1) Right to silence: Miranda is satisfied by “scrupulously honoring” the right to cut off questioning, but police may try to question again if there is a new charge, new questioner, and new warnings
2) Right to counsel: A request for counsel requires cessation of questioning until an attorney is provided and is present unless the suspect voluntarily initiates a conversation with the police.
The invocation continues even after the suspect consults with the lawyer: police still may not question him (unless the suspect initiates) unless the lawyer is present.
52
When police may try to question again to question a person who invoked his Miranda rights?
14 days after the suspect has been released from custody.
53
Based on the Sixth Amendment right to counsel.
“In all criminal prosecutions the
accused shall enjoy the right to . . . . . assistance of counsel.”
54
Protections of the 6th Amendment begin:
When formal adversary proceedings have begun.
55
Sixth Amendment has “attached” during:
1) arraignment
2) indictment
3) information
4) other formal charge
56
Does an arrest or other form of custody does by itself trigger 6th Amendment protections?
No. Only once formal proceedings have begun.
57
Does the suspect need to be in custody for 6th Amendment protections to apply?
No.
58
A defendant invokes his Sixth Amendment right to counsel, for purposes of interrogation, when he..
unambiguously or unequivocally requests counsel upon being approached by the police for interrogation.
59
Once the 6th Amendment was invoked, eliciting information is prohibited ...
1) by law enforcement agents, unless counsel is present or the suspect initiates a conversation on the general subject and waives his rights, or
2) by undercover informants, including “jail plants,” who engage the defendant in conversations about the charged crime.
Note" “Passive” listening by an informant is acceptable, however.
60
Does the invocation of the rights on one charge bar elicitation of statements on another, uncharged crime, even if the uncharged crime is factually related to the charged one?
No, it does not bar that.
e.g.
A defendant is arrested, arraigned, and released on bail. Police engage an informant who is wearing a recorder and send him to speak with the defendant. He elicits incriminating statements about the charged crime and other crimes. Statements about the charged crime are suppressed; however, the other crimes are not.
61
The waiver applies only to..
It applies to known police officers
However, there can be no waiver to undercover informants
62
In all criminal prosecutions, the accused shall enjoy..
the right to be confronted with the
witnesses against him; to have a compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defense.
63
Right to retained counsel... What are the options available for D?
a. Defendant gets counsel of choice.
b. Defendant can represent himself, so the right can be waived in court.
Waiver requires the government to bear the burden of proof that the waiver is: 1)
voluntary, 2) knowing, and 3) intelligent.
64
Waiver of right to counsel needs?
A waiver requires the government to bear the burden of proof that the waiver is:
1) voluntary, 2) knowing, and 3) intelligent.
65
6th Amendment right to counsel apply to which convictions?
1) Felony conviction, regardless of the punishment
2) Misdemeanors and petty offenses when there is any incarceration or suspended sentence of incarceration is imposed
3) Later enhancements based on legal uncounseled conviction
66
6th amendment Applies at all “critical” stages of a criminal case:
e.g., preliminary hearing, live pre-trial ID after defendant is charged.
67
IS denial of counsel right is a harmless error
NEVER.
68
Appointed counsel on appeal..
a. Appeal as of Right: There is a right to appointed counsel and to a free trial
transcript if necessary for the appeal.
b. Discretionary Appeal: There is no right to appoint counsel on a discretionary appeal to a state supreme court or to the U.S. Supreme Court
69
EFFECTIVE ASSISTANCE OF COUNSEL: Prejudice is presumed when the government interferes..
with the ability of the defense lawyer to carry out her adversarial duties.
70
a Sixth Amendment violation is established
by..
demonstration of the state action, and there is no requirement to show prejudice or harm.
actions like:
a. bar on attorney-client consultation during overnight recess for fear of coaching;
b. requirement that the defendant be the first witness;
c. bar on direct examination of the defendant.
71
Ineffective assistance of counsel claims..
A convicted defendant's claim that
counsel’s assistance was so defective as to require reversal of a conviction or
death sentence has two components..
Error and prejudice.
72
The defendant must show that counsel’s performance was
deficient.
73
Error is established when the defendant shows
that counsel’s representation fell below an objective standard of reasonableness
e.g.
1) defense counsel relying solely on police reports without independent investigation is ineffective assistance
2) ignorance of the substantive law governing the crime is ineffective assistance.
74
The proper measure of attorney performance remains simply..
reasonableness under prevailing professional norms
75
Do truncated preparation time or lack of experience or expertise alone establish ineffective assistance of counsel claim?
No.
76
IS Lack of rapport "where the defendant claimed a last-minute substitution denied the defendant a “meaningful attorney-client relationship.” is defective counseling?
No. Rapport is not inherent in the
Sixth Amendment guarantee of a right to effective assistance of counsel.
77
Are questionable defense decisions concerning investigation, objections, testimony, etc., which can be explained by
reference to trial strategy considered errors?
No.
78
The defendant must show that the "deficient" performance actually
prejudiced the defense.
Defendant must show that counsel’s
unprofessional errors raise a “reasonable probability” of a different outcome.
e.g. : sleeping by counsel during trial is sometimes ineffective assistance.
joint representation of two or more accused who have an actual conflict of interest is per se prejudicial.
79
If there was a 4th, 5th, or 6th Amendments violation, What is the remedy available?
THE EXCLUSIONARY RULES
80
When does the EXCLUSIONARY RULE apply?
apply to state actors, and not to private party searches, seizures, or interrogations.
81
What constitutes a state actor in this context?
The principal inquiry in determining whether a private party’s actions constitute “state action” is whether the party’s action may be “fairly attributable to the state.”
82
The Supreme Court has found state action present when the government
delegates to the private sector functions that are historically and traditionally governmental in nature.
e.g. If a municipality privately contracts out the operation of prisons, schools, and municipal parks, the employees of such private contractors would be considered state actors for Fourth Amendment purposes.
83
If the search has been requested or directed by a state actor, where the private party is participating jointly with state actors or the state actor is present and tacitly approves the action, the Fourth Amendment
The Supreme Court has held that a private party who is a “joint participant” with state actors acts under “color of state law' and 4th Amendment applies
e.g.
Employees of a private mail carrier company partially open a package
containing drugs and alert the police. As long as the police follow the private
trespass without expanding the breach in any way, the invasion of privacy is
attributable to the original private actors. However, if the police expanded the
breach of private with a further invasion of privacy, the separate invasion by the
police would constitute a violation of the Fourth Amendment.
84
The exclusionary rules only apply in
criminal trials and criminal forfeiture
proceedings, and even then not for all purposes.
85
The exclusionary rules never apply in
1. civil cases;
2. grand jury (except for Title III violations);
3. sentencing;
4. administrative proceedings: deportation, probation, or parole violation
proceedings
86
Application of the exclusionary rule requires there to be a
be a causal connection between the violation and the discovery of the evidence.
87
Evidence obtained in direct violation
of a constitutional provision
evidence indirectly secured as a result of the original illegality is
is generally excludable.
88
The “fruit of the poisonous tree” is subject to
to counter considerations of attenuation, inevitable discovery, or the independent source rule.
89
Examples where the exclusionary rules will not apply to “fruit of the poisonous tree”
1) Tangible Items -- This applies to items seized as a result of a warrant issued on the basis of observations during an illegal search
2) Defendant’s presence at trial - the defendant cannot suppress himself.
3) Confession as a fruit of illegal seizure. Usually suppressed, unless there is a
gap of longer than several hours between arrest and confession, or other intervening circumstances.
4) Confession as the fruit of illegal warrantless home entry to arrest. - t. If the only
defect in the arrest is the lack of the required warrant, statements taken in the home
are suppressed. Statements taken outside the home are not.
5) Witnesses. The witness' decision to testify is a matter of free will
6) Fruits of Miranda violations. the only suppressible fruits of Miranda violations are the statements themselves. Tangible items, witnesses, and subsequent statements (properly obtained) are not suppressed, even if the Miranda violation is the “but for” cause.
90
Fruits of Miranda violations vs. Fruits of coerced confessions.
6) Fruits of Miranda violations. the only suppressible fruits of Miranda violations are the statements themselves. Tangible items, witnesses, and subsequent statements (properly obtained) are not suppressed, even if the Miranda violation is the “but for” cause.
7) Fruits of coerced confessions. By contrast, fruits of coerced confessions, including tangible items, will be suppressed, as will fruits of testimony compelled under a grant of immunity.
91
LIMITATIONS ON THE EXCLUSIONARY RULE :
1. Independent source rule.
e.g. Police have probable cause to obtain a search warrant to search a house
for stolen TVs. They break into the house and see the TV’s. They then apply for
a warrant, not mentioning their illegal entry or observations. As long as the entry
did not motivate the warrant application, the pre-existing probable cause and the
warrant constitute an independent source for the discovery of the TV’s
2. Inevitable discovery rule
- The prosecution must prove by a preponderance of the evidence that the information ultimately would have been discovered by legal means.
92
T or F: If the defendant takes the stand in his defense he may be impeached with illegally obtained evidence
True. It can be in the form of prior statements or tangible items, that was inadmissible on the prosecution’s case-in-chief.
93
Can witnesses of D be impeached with evidence illegally seized from the defendant?
No.
94
involuntary statements (see above) nor
statements obtained under a grant of immunity (legal coercion) may
be used for impeachment
95
Impeachment with silence, when can it be used?
The defendant’s silence, when arguably he should have spoken, either prior to arrest or after it, may be used to impeach his testimony, subject, of course, to the rules of evidence. However, silence after Miranda warnings may not be used, nor may the suspect’s invocation of Miranda rights.
96
Standing issues triggered how?
The usual question is whether or not the suspect herself had a reasonable expectation of privacy in the place searched.
97
Who has standing in:
1) Homes
2) Guest in homes
3) Cars
4) Phone conversaions
1) Home. Those with a possessory interest in the home have an expectation of privacy there, including in phone conversations on their telephones to which they are not parties.
2) Guest in home. Overnight guests have standing; probably most social guests
do; brief commercial visitors do not
3) Vehicles. Owner and driver have standing; passengers do not have standing in areas such as glove box, under seats, trunk.
4) Phone conversations. Parties to phone conversation have standing to
challenge the electronic surveillance
98
Miranda does not bar all statements made prior to the giving of Miranda rights. Statements made without any questions being asked are considered
volunteered, and admissible even if the required Miranda warning wasn't given.
a statement that is not in response to any
‘‘interrogation, cannot be barred by
a failure to give a Miranda warning.
